The bill creates two offenses, Harmful Electronic Communication, and Malicious Electronic Communications. Malicious Electronic Communications is the offence of persistently sharing malicious electronic communications regarding another. “Malicious” is defined as intentionally or recklessly causing alarm, distress or harm. Where this differs from the already existing offence of harassment is that it relates to communications “regarding” another rather than communications to another. In submissions to the Oireachtas Joint Committee hearing on Social Media, I was at pains to preserve this distinction. A letter, phonecall or email is intimate in nature. A letter, in particular, carries the implied threat of “I know where you live”. It is distrubring to be subject to these kinds of unwanted communications in ways that being communicated about is not. If someone is repeatdly saying hurtful things about you, but not to you, that implied threat is no longer present. There is a world of difference between finding an abusive email in your inbox, and being upset by what you come across while searching Twitter for your name.

Public speech obtains Freedom of Speech protections in a way that unwanted private communications do not. The requirement that these communications be “persistent” makes sense in a harassment context. In the contect of this offence, it is an attempt to limit offensive public speech in crudely numerical terms, allocating a quota of offensiveness (“three srikes and you’re out”, perhaps) to each speaker. Further, it is notable that this section doesn’t require that the malicious statement be untrue. By making distress the yardstick for the offence, it makes Free Speech standards dependent on the thickness of skin of the person being spoken about.

Finally, insofar as this kind of indirect harassment can be criminalised (and, for the reasons I’ve just given, I am not sure that it can), it should be done via an amendment to the existing Harassment offence. Creation of duplicate and near-duplicate offences causes confusion, of which we already have too much in this area.

Harmful Electronic Communication is defined as the causing of alarm, distress or harm to another by sharing communications which incite or encourage another to commit suicide or cause serious harm to themselves, or which include explicit content of the other. A single communication will suffice for this offence. In respect of the inclusion of exhortations to suicide or self-harm, I note that this communication could be said to qualify, as indeed could (NSFW) this one. Again, the weakness here is the failure to distunguish between one-to-one communication and wider publication. This is unfortunate, because the provision regarding explicit content is an attempt to address a genuine legislative need.

Ireland currently does not have adequate legal provsion for “Revenge Porn“, the publication of intimate or explicit images of persons without their consent. Granted, the provision in this bill might benefit from some amendment. The drafting of the bill appears to limit the offence to sending of an image of a person to “the other”, that is to the person in the image herself, which surely cannot have been the intention. Also, there is no provision that the image be taken or shared without consent, though that is perhaps implied by the requirement that the sharing of the image cause alarm, distress or harm. Nonetheless, the creation of an offence of this type may, in principle, be a good idea.

However, what revenge porn victims need is not prosecutions, but a remedy. They need the image removed from the internet, and may be uninterested in seeing the perpetrator punished. Indeed, given the publicity attendant on a criminal trial, it may be the last thing they want. The worst-case scenario for a victim is draw attention to herself via court proceedings, while the image was still widely available online for all to see.

My proposed response to the problem is to use the Data Protection Act, which already allows a person to object to a processing of data (and this would include publication of an image or video) likely to cause distress. At present, the data controller is required to cease the processing within 20 day. Given the speed with which things can go viral, 20 days is no longer a tight enough deadline, and consideration shoudl be given to shortening it. In addition, there is no meaningful sanction for a data controller who fails to act, or to act in time. If companies were to be made liable in the courts for the distress caused by this failure, I suspect they would begin to act very quickly. If they can do it for copyright holders, whose material can now be pulled from the internet within minutes of being posted, they can surely do it for distressed citizens. This would be an elegant solution, offering a remedy to the victim without burdening a stretched police force with additonal time-intesive work.

Nonetheless, there will always be egegious cases where the weight of the criminal law may be the only appropriate sanction. The mere existence of a criminal offence would help to send the message that this is not a bit of laddish fun, but a sexual offence against the person. Senator Higgins’ proposal, despite its flaws, is the first attempt to provide for such an offence, and in that regard it is to be welcomed.